Kagan gets OK as next justice

Senate vote puts 3 women on high court for 1st time

by David Lightman - Aug. 6, 2010 12:00 AMMcClatchy Newspapers

WASHINGTON - Solicitor General Elena Kagan won easy Senate confirmation Thursday to the U.S. Supreme Court, where President Barack Obama's second nominee will make history as three women will serve at the same time on the nine-member court.

The 63-37 vote, largely along party lines, was no surprise after the 50-year-old former Harvard Law School dean sailed through her Senate Judiciary Committee hearing.

Obama said the vote "wasn't just an affirmation of (Kagan's) intellect and accomplishments, it was also an affirmation of her character and her temperament; her open-mindedness and even-handedness; her determination to hear all sides of every story and consider all possible arguments."

During this week's Senate debate, Democrats lauded Kagan, a self-described "progressive" who will become the only sitting justice without prior experience as a judge, as a fresh, different voice, while Republicans painted her as unqualified and harboring dangerous liberal tendencies.

"Solicitor General Kagan's experience outside the judicial monastery will be valuable to her when she is confirmed," Senate Judiciary Committee Chairman Patrick Leahy of Vermont said during the debate. "No one can question the intelligence or achievements of this woman."

Republicans raised questions.

"While she is truly intelligent, the exceptional qualities of her mind may be better suited to dealing with students and unruly faculty than with the daily hard work of deciding tough cases before the Supreme Court," said Sen. Jeff Sessions of Alabama, the committee's top Republican.

The court has already agreed to hear 37 cases in its next term, about half of the number likely to be heard during that period. Sometime next month, Kagan is expected to meet with other justices in private conferences to decide which other cases may be considered.

Among the issues likely to be taken up is a challenge to a new federal court decision striking down California's ban on gay marriage. The case has been appealed to the 9th U.S. Circuit Court of Appeals.

As solicitor general, Kagan has been the Obama administration's chief attorney arguing cases before the court and will not participate in cases in which she was involved in appellate proceedings, notably a challenge to mandatory minimum prison sentences imposed on armed drug dealers.

Kagan, who succeeds Justice John Paul Stevens, who retired from the court in June at age 90 and was generally considered part of the liberal wing, is unlikely to shift the philosophical balance.

However, she will go in with a political tinge, a trend that has become apparent in recent years. Until recently, the unwritten rule of court confirmations was that if someone was qualified, politics was put aside. President Bill Clinton's two choices, Ginsburg and Stephen Breyer, both were confirmed, with three and nine opposing votes, respectively.

Democrats mounted partisan challenges to President George W. Bush's nominees and attempted a filibuster against Samuel Alito in January 2006. The effort failed when it got only 25 of the 60 votes needed - Obama, then a U.S. senator from Illinois, favored the extended debate - and Republicans have since mounted similar challenges to Obama's nominees.

Kagan, determined not to fuel partisan ire, answered nearly 700 questions during her confirmation hearing and was careful, as all recent Supreme Court nominees have been, not to suggest how she might decide cases.

She noted, though, that "I've been a Democrat all my life," so most Republicans didn't buy the idea that she would bring an open mind to the bench.

"Without any real experience or grounding in the actual practice of law, Ms. Kagan's experience makes me more, not less, skeptical of her suitability for the Supreme Court," said Sen. Orrin Hatch, R-Utah. "It puts even more emphasis on her judicial philosophy."

Republicans' most-mentioned concern involved her decision to restrict military recruiters at Harvard Law School because of the military's policy banning openly gay service members.

"How can one explain the actions of Elena Kagan while dean of the Harvard Law School?" asked Sen. John Barrasso, R-Wyo., adding that Kagan "simply chose to ignore the law because of her strongly held personal beliefs."

"Such explanations don't work for an individual seeking to become a justice on the U.S. Supreme Court," he added.

Kagan, in a 2003 e-mail, had called the military policy a "profound wrong - a moral injustice of the first order."

Republicans also suggested that Kagan is likely to be sympathetic to the new health-care overhaul, which became law earlier this year, as well as gun-control efforts.

Democrats brushed aside these arguments.

"To say that she does not have the gifts or the qualities of mind to be a justice is nothing short of ridiculous," said Sen. Amy Klobuchar, D-Minn.

There were few dissenters from the party line. Nebraska Democrat Ben Nelson voted no, while five Republicans - Maine's Olympia Snowe and Susan Collins, Judd Gregg of New Hampshire, Richard Lugar of Indiana and Lindsey Graham of South Carolina - voted for Kagan.